Rectification of Names Editors’ Blog – Talking Points Memo / by Josh Marshall

Rectification of Names

Editors’ Blog – Talking Points Memo / by Josh Marshall / 1h

September 23, 2019 08:32 AM

Over the last two days, I’ve been trying to take stock of the quick rush of new details about this emerging Trump/Ukraine scandal. It is clear purely on the basis of what is now undisputed in the record that the President and Rudy Giuliani are guilty of a criminal abuse of power and that most or all of the President’s top national security advisors have been complicit in and quite likely participated in that criminal activity.

But before we can really understand this story in any coherent way we need to realize that many of the words and concepts are simply wrong. Indeed they pack the criminal conduct and deception into the very vocabulary we use. That makes it next to impossible to make sense of what’s actually going on.

Let’s start with the “investigation.” The standard description is that President Trump’s personal lawyer Rudy Giuliani is pressing the government of Ukraine to launch an investigation of Joe Biden and his son Hunter Biden. This is a non-sequitur. As I noted last week, what’s being demanded isn’t an investigation. Trump and Giuliani are demanding that Ukraine that manufacturedamaging and false information about Joe Biden, either directly or via his son. This is likely directly through manufactured evidence or indirectly simply by standing up a bogus investigation.

The U.S. government has ample resources to conduct its own investigations and little compunction about investigating bad acts that Americans commit abroad. Indeed, there’s a whole set of laws to cover corrupt acts by Americans abroad. To the extent the FBI needs assistance of local law enforcement, treaties or geo-strategic clout will make that happen. The central claim – that Biden got a Ukrainian prosecutor fired to protect his son – is preposterous on its face to anyone who followed what was happening at the time. The U.S., the EU and numerous international organizations agreed that the prosecutor in question should be dismissed. Biden was the U.S. point-man on the issue. Clearly it didn’t stem from his decision-making. The other claim is that the DNC framed Paul Manafort. This has already been the subject of the Special Counsel investigation and two Inspector General’s probes. More importantly, the government of Ukraine has repeatedly said there’s nothing to investigate.

When you demand an “investigation” when investigations have already happened and there’s demonstrably nothing to investigate, this is a mislabeling of what is happening. You’re pressuring someone to manufacture damaging information – in this case, using the existential threat of withholding great power military support.

Now let’s talk about Rudy Giuliani, the President’s “personal lawyer.” Rudy Giuliani is clearly not the President’s personal lawyer. He had some involvement in the President’s defense in the Mueller investigation. But he is not the lawyer of record in any of the President’s numerous ongoing legal controversies in which he is litigating as private individual. Lawyers either defend or vindicate their clients’ legal interests in some definable legal process. Sometimes a lawyer will also advocate for their client in a broader court of public opinion. But no private lawyer speaks with the backing of the most powerful person in the world in private negotiations and threats with foreign governments.

Giuliani is acting as a private ambassador of Donald Trump, President of the United States. This is very useful since he can speak with the authority of and issue threats on behalf of the President of the United States, literally the most powerful man in the world, and conduct what amounts to personal diplomacy in the President’s interest without any of the legal restrictions over a public official.

He not only speaks with the President’s full power at his disposal, he also makes selective use of government diplomatic services. According to Giuliani, State Department officials helped him arrange meetings with Ukrainian officials. So Giuliani works entirely in the President’s personal interest even though he speaks with the full authority of the President’s official power. It’s a great system. He has none of the responsibilities of a government official, none of the susceptibility to oversight. And he claims the additional protection of attorney-client privilege. There’s a good argument that these non-legal services and probable criminal conduct aren’t really covered by such a privilege. But that hardly matters since extensive fact-finding and litigation would be required to test that proposition.

Giuliani can be refreshingly frank about his unique status. “Some government lawyer would be nervous to do what I do. I’m a private lawyer, I represent my client, and I’m going to prove it to you that he’s innocent.” Of course this is nonsense because there’s no legal jeopardy he’s protecting his client from and any notional wrongdoing by the son of a former Vice President has no connection with him outside the context of a future political campaign.

Giuliani is President Trump’s personal ambassador and Ukraine isn’t his only stomping ground. He has continued to work for the MEK, the Iranian dissident group until recently classified as a terrorist organization by the U.S. government, while President Trump tries to topple the government of Iran. Josh Kovensky assembled this list of nine other countries where Giuliani has traveled, since becoming Trump’s “personal lawyer” for either private consulting or speaking engagements: Armenia, Ukraine, Turkey, Bahrain, Qatar, Israel, Albania, France and Poland. Giuliani has been doing foreign consulting work with regimes around the world since 2002, leveraging his reputation as Mr. 9/11. So foreign consulting isn’t new for Giuliani. But it’s impossible to imagine that his juice hasn’t been turbocharged to an infinite degree by the fact that he is now the personal emissary of the President of the United States. It also seems quite unlikely he isn’t doing business for the President too, either for the President’s businesses or for his political protection.

The U.S. Constitution gives the American President great power to conduct foreign policy and enforce the laws on behalf of the Republic. They are delegated specifically for that purpose, much as a private individual might delegate to an investment advisor or attorney the power to act on the individual’s behalf or in their interest. The President also has great latitude to decide what is in the national interest. But when he or she clearly uses those powers – which are massively inflated by the power of the American state – to profit personally or defend his personal interests they immediately become an abuse of power. When they are used to interfere with conducting a free and fair election in the U.S. they clearly constitute criminal abuse of power.

The words here matter. Giuliani is the President’s private diplomat, private ambassador. If those words are too rich for your blood call him the President’s personal representative. Whatever it is, the President has given him the power to threaten and negotiate with the full weight of presidential power for Donald Trump’s private gain. That’s not lawyering. He’s not a “personal lawyer.” And he’s asking a foreign power to manufacture evidence to tamper with a U.S. presidential election.

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